Posted in Environmental Law

Dereliction of Public Consent in EIA: The Sterlite Plant Controversy

On 22nd May 2018, Thoothukudi (Tuticorin) in the Tamil Nadu state of India, turned violent when protest demanding the closure of Vedanta’s Sterlite Copper unit entered in a clash between the protestors and the police, killing 11 people. These protests began nearly two decades ago intensifying after the company announced its expansion. A stay was put on the expansion insisting that the company should seek public consultation first. However, the plant got an environmental clearance in 1995 without even conducting the mandatory EIA. Moreover, Sterlite, which falls under the Hazardous Red Category large industry, in order to avoid a public hearing, claimed that its new project site fell within the SIPCOT Industrial Complex which is exempted under the EIA notification. These events have brought in limelight the loopholes in public consultation under EIA in India.

Today, when the nature of sustainability has gone complex and multi-pronged, it is suggested that no single institution can be expected to hold all expertise knowledge for decision-making. In International Law, public participation was introduced by Aarhus Convention, 1988. The Convention is a legally consolidated measure to enhance public participation in decision making and access to justice. There are other instruments like Convention on Environmental Impact Assessment (Art 16) and North American Agreement on Environmental Cooperation (Arts 13–14) which contains public participation clauses, thus highlighting the importance of public participation.

Indian Constitution is one of the few constitutions of the world which acts as grund norm for national environment law. The Constitution under Part III guarantees fundamental rights which are essential for the development of every individual and to which a person is inherently entitled by virtue of being human alone. The right to live in a healthy environment as part of Article 21 was first recognized by the Supreme Court in Rural Litigation and Entitlement Kendra vs. State.

In India, EIA is the only environmental tool which legally ensures that any new project be installed in a way that is not detrimental to the environment. In 1994, an EIA notification made Environmental Clearance (EC) mandatory for any expansion or modernization activity or for setting up new projects listed in Schedule 1 of the notification. This was followed by an EIA notification, 2006  which elaborates EIA as a multi-step process where a proposed project has to undergo: Screening, Scoping, Public Consultation and Appraisal. Subsequently, an Expert Appraisal Committee undertakes a detailed scrutiny of the documents on the basis of which the concerned Ministry issues its final decision. In India, the foundation for public participation in EIA was laid down in a 1988 conference titled the International Conference on Environmental Impact Analysis for the Developing Countries held in New Delhi. Interestingly, despite considerable debate centred on the role of public participation, there was no representation at the conference from public interest groups themselves. This would gradually become the norm, as the public interest was simply understood to be represented through the roles of various others – especially funding agencies and the government.

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Specifically, the element of public consultation has been a failure in India due to:

  1. Firstly, easy ways by project proponents to exempt themselves from holding public consultations. For instance in projects of Delhi Metro Rail Corporation Ltd., New Delhi and the Commonwealth Games Village over river Yamuna in New Delhi, India.
  2. Secondly, evasive nature of its proceedings. For instance, improper method of voting at Nuclear Power Plant of NPCIL at Gorakhpur, Haryana or violence during public hearings of Jindal Group’s Coal mines.

EIAs have eventually become a ritualistic farce in each country in addition to governmental prejudice against environmental activists. The process is weakened by the prioritization of infrastructure development, a focus on mitigation measures rather than prevention of harm, lack of accountability, a general disrespect of local people’s perspectives (especially in rural, traditional and poor areas)  and bias of some environmental impact statements (EISs). Moreover, most EISs hardly provide any useful data to decision makers thereby failing to adopt standard scientific methods.

Any developmental activity, especially mega projects like Sterlite have a consequential and associated impact of a greater magnitude on both the environment and human life. It thus becomes imperative to make EIAs more objective and verifiable, such that all information related to a proposed project must be open to the public ensuing public hearings. Being a systematic process, it should ensure that public consultations take place in the early stages of planning and design in order to eliminate any potential problems that might be a hindrance to the goal of sustainable development.


ABOUT THE AUTHORS

Mahvish Shahab

Mahvish

Mahvish Shahab is a fifth-year law student at Jamia Millia Islamia. She has an interest in human rights law and has worked across various interdisciplinary human right issues.

Pranav Tanwar

pranav

Pranav Tanwar is a fifth-year law student at Jamia Millia Islamia, he has a keen interest in almost everything about law, sports, and people. Apart from reading and writing, he manages Indian Journal of Law and Public Policy.

 

Posted in Environmental Law, Suggestions

Right to environment calls for justice!!

Human beings across the globe have gradually developed sensitivity towards the concept of sustainable development and have started using the natural resources cautiously. We, in some or the other form, have made efforts to save each and every component which constitutes a healthy environment, be it flora or fauna.

In India, we have a number of laws that are legislated to protect and develop the environment for the benefit of the people who are a part of this country. Some of them are as under: –

  1. [The Water (Prevention and Control of Pollution) Act, 1974 ;
  2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
  3. The Air (Prevention and Control of Pollution) Act, 1981;
  4. The Forest (Conservation) Act, 1980;
  5. The Wildlife Protection Act, 1972.][1]

The government has also taken several steps as and when necessary through various campaigns like Rally for Rivers, Swachh Bharat Abhiyan, Odd and Even scheme in Delhi, shifting of Mathura Refineries away from Taj Mahal, providing carbon credits to the industries etc. to decrease pollution and save the environment from deteriorating further.

Hon’ble Apex Court in Subhash Kumar vs. State. of Bihar, held that right to life is a fundamental right under Art. 21 of the Constitution and it includes the right to enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has recourse to Art.32 of the Constitution for removing the pollution of water or air which may be detrimental to life.[2] In the case of Vellore Citizens Welfare Forum v. Union of Indian[3], the principle of pollutants pay was also given.

Main Issue: – The main issue is that Judiciary, as one of the pillars of the Government, is making efforts to recognize environment and its importance in every possible manner but is it really doing so on all fronts?

Real life example: –

  1. Many times, we get emails and at the bottom, a line is mentioned as ‘Think of the Environment before printing this mail’
  2. At ATM machines they provide the facility of showing the balance on the screen, instead of printing the same.

How this is related to law and Judiciary in particular?

In Indian Courts, all the documents are submitted in hard copy and the copy of the same is to be served to the opposite party. So, every document has three copies to be made and there is no end to the number of pages used. Also, there are huge numbers of cases that are heard in courts across the country. Also, the paper is used for various other purposes, where its use can now be reduced thanks to the extensive presence of modern technology.

What steps can be taken?

  1. The government has taken some steps but work should also be done in the direction that documents used in the printing copies may be used as less as possible and it should be made available online with proper set of security measures so that number of copies used of same document is decreased.
  2. Also, for the people who do not have access to technology, they should be provided with adequate knowledge and access to technology.

Conclusion:-

These steps mentioned above might seem not achievable to you initially but if worked towards with planning, clubbing it with various other campaigns, ensuring active participation of citizen, they can be implemented successfully. And most importantly, it is to be done before it’s too late!

[1] http://www.environmentallawsofindia.com/the-environment-definitions-and-acts.html

[2] (1991) 1 SCC 598

[3] AIR 1996 SC 2715


ABOUT THE AUTHOR

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MANSI CHHAYA

Mansi is a law student from Unitedworld School of Law. She has always believed that life is about challenging oneself and living outside one’s comfort zone. Be it music or national level examinations, her focus has always been on trying to develop herself holistically. A consistent high performer and student of the year, she wishes to use her knowledge to ensure justice for people who deserve it.

 

Posted in Environmental Law, International Trade Law

The Guise of Climate change and Protectionist Trade Laws

Protectionism involves any attempt by a country to impose restrictions on trade in goods and services. Countries resort to protectionism in ways that are not obvious and meddle with the forces of a free market (demand and supply) for the benefit of their domestic economy.

Protectionism is illegal under the WTO rules; but developed countries, with support from radical green NGOs (funded by them), have adopted restrictive trade policies on the ground of environmental concerns with respect to their trade with developing countries.

Green NGOs originally emerged as influential agencies in identifying environmental and health hazardous products, produced or manufactured by humans, but now are being used by developed countries to safeguard their business interest under the guise of environmental issues.[1]

To stop the entry of products from developing countries to compete with their domestic products, restrictive environmental compliance for all kind of products- Agri, Auto, Electrical and Electronics etc, are put in place, which are very difficult for developing countries to meet due to non-availability of high technology and cost-effectiveness.

Radical green NGOs and monopoly-rent-seeking businesses have partnered with governments for imposing statutes and regulations to demonize certain products and use discriminatory double standards. For example, EU and U.S. regulations have unjustifiably categorized a number of agricultural production methods as “illegal” or a “threat to biodiversity.”

Trade restrictive measures by the U.S. and E.U. on the production of forestry products, GMOs, palm oil and many other traded products in the developing countries hinder future job creation, and higher living standards as tens of millions of men and women rely on the jobs and economic growth that export industries provide.

The Forest Stewardship Council (FSC) funded by EU countries and by dozens of green NGOs, was established to promote the responsible management of the world’s forests. FSC certification has now become a scheme that disproportionately protects the interests of Western paper producers to the detriment of the developing world.

FSC certification requires producers to provide meticulously updated management plans and monitor forest conditions. The technologically advanced West faces far fewer hurdles in complying with the standards that it lays down than the still-developing African and Asian Counties.

The lack of FSC certification can impair the image of a company’s products across the board other than the fact that complying with these requirements makes the otherwise cheap foreign products less competitive in the market.[2] 

Links between the Green NGOs and their allies in the governments of developed countries points undoubtedly towards mala fide intentions of developed countries. Environmental groups and other NGOs have formed alliances with European Commission directorates, U.S. government agencies, and U.S. and European agribusinesses. European Commission gave more than 66 million to environmental NGOs between 1998 and 2009 and about 600,000 to WWF Europe in 2009.[3] The campaigns of these NGOs, may not directly support Europe’s domestic industries, but undoubtedly helps to shame their foreign competitors.

U.S. federal government has imposed a ban on import of illegal timber and timber products by way of amendments to the Lacey Act[4]. The regulations impose more barriers to the entry into the U.S. market in the name of environment protection. These new compliance requirements assert that the same economic and technological advancement in the Western world are the norm in the developing world. The expensive due diligence requirements put developing-world competitors, at a distinct disadvantage as they will lose their competitive advantage because of cheaper labour and more widely available resources.

Ironically, homegrown U.S. wood products will not be subject to these new requirements, which means that the U.S. Congress has de facto subsidized domestic timber-related products.[5]

At present, it appears that measures taken by developed countries to tackle climate change has definitely a protectionist purpose and has been adversely affecting the business interest of developing countries.

WTO has to ensure that green protectionism is put in check and only those policies which safeguard the business interests of all stakeholders are allowed for governance of free international trade.

[1] The Heritage Foundation,“Green Protectionism“, August 11, 2010, at http://www.heritage.org/environment/commentary/green-protectionism.

[2] Editors of E/The Environmental Magazine, “Which Wood Should We Buy?” The Daily Green, April 1, 2010, at http://www.thedailygreen.com/environmental-news/latest/sustainable-wood-460410 (November 18, 2010).

[3] Ooi Tee Ching, “Billion-Dollar Trade War Fuels Vegetable Oil Politics,” Business Times, October 23, 2010, at http://www.btimes.com.my/Current_News/BTIMES/articles/jemut/Article (November 18, 2010).

[4] The Lacey Act, 16 U.S. Code §§ 3371–3378 (2010).

[5] International Network for Environmental Compliance and Enforcement, “Recent Amendments to U.S. Lacy Act Should Help Protect Forests Worldwide,” October 23, 2008, at http://www.inece.org/climate/ClimateComplianceAlert_LaceyAct.pdf (November 18, 2010).


ABOUT THE AUTHOR

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TANVI SINGH

Tanvi Singh is a fourth-year Law student pursuing B.Com. LL.B. (Hons.) at Gujarat National Law University. Tanvi believes that deductions and deliberations must be made sincerely based on well-researched information. Her academic interests are in the field of International Trade Law, Law and Economics, Contracts and Arbitration.

Posted in Environmental Law

Visiting a National Park

What a nice day! Let’s go somewhere to relax…”

Somewhere can mean anywhere, but usually by using the word “relax”, people tend to think in nature. Beautiful landscapes, fresh air, cute animals; who would not be attracted to that? There are a lot of options on where people should go to “relax” and have a good time. National Parks are the favourite ones.

A National Park is a category of management of a protected wilderness area whose objective is the conservation, defense and improvement of the environment and the natural resources involved.[1]In addition of being a conservation area, people are allowed to enter, but it isn’t aregular park, or like places called “Balnearios”[2]So there are certain issues to keep in mind when visiting this type of places.

The use of logic is always good. Of course, as it is a conservation area, people are allowed to enjoy these spaces, but without damaging or harming the environment.Who would dare to harm something as beautiful as nature? Well, sometimes because of ignorance people perform acts that are actually forbidden, other times they do it by being aware that it is wrong. This second group of people are really unpleasant. But at least, for the people interested in learning and making this world, a better world, here are some facts that we must know.

While legislations vary around the world, many of them have similarities. Let’s learn some of the rules[3]through situations:

If while you walk appears a snake, usually you think about running or if you are “brave”[4] enough, you think in killing it to defend yourself. Well you’d better have chosen the first option, since it is prohibited to kill, damage or frighten wild animals, or destroy their lairs or nests. It is recommended to walk away from the place, and inform the park ranger o the place manager.

It doesn’t even matter if we you have found something dead because collecting and / or extracting any material, alive or dead, without the corresponding permission of the Authority is prohibited. There is a license for doing that.

“What a beautiful flower! It would look nice for a photo.”Well, yes, you can take amazing photos of the flower, but by extracting them? Please, don’t! It is forbidden to destroy, to remove or to remove plants of the place.

Having a good time for majority is generally synonymous of drinking alcohol, “A beer with friends does not cause any harm, right?” Well, consuming or selling alcoholic beverages, narcotics or other drugs of any type, as well as enter to the area intoxicated it is prohibited.

Besides alcoholic beverages, there is also something almost indispensable to have a good time: music! If you love group meetings with a guitar and people singing, a National Park is not the place for you, as it is prohibited to use sound elements (radios, musical instruments, etc.) that disturb the natural environment or other visitors.

For people who love to take their pets for a walk, they must remember that they need the authorization of the administration to enter or transit domestic animals within the area.

You must not perform recreational activities in places other than those indicated (camps, lunches, bath room, etc.). National parks as they are designed so that people enjoy the contact with nature, they usually have specific areas in which people can carry out the activities mentioned.

There are other things to take in count but this are the principal ones. For last but not least, don’t litter. It talks a lot of what kind of people you are.

On June 21, the National Parks Day is commemorated in Paraguay by Decree No. 21,525 / 93, in order to raise awareness among citizens about the importance of these places for nature care.

The parks and national reserves[5] of Paraguay occupy an area equivalent to almost 3% of the national territory, where almost 40% of the native flora and fauna are found, whose species, for the most part, are in extinction.[6]Why? Most of the time, because of one kind of people. The unpleasant ones.

It is our duty to take care of the wild spaces, and to respect the regulations that have been created for the well-being of all and for the conservation of the protected area.

[1] Art. 4.Paraguayan Law No 352-94 “Protected Wilderness Areas”Available in Spanish: http://www.seam.gov.py/sites/default/files/ley_352_0.pdf

[2] I couldn’t find the perfect translation for this word, but in Paraguay it is used for places with lakes or rivers, where people go to enjoy the nature, and also to drink and dance.

[3] Extracted from the Resolution Nº 781/05 of the Ministry of Environment of Paraguay. Available in Spanish: http://seam.gov.py/sites/default/files/resolucion%20781.pdf

[4]Sarcasm.

[5] Different category of management. Generally stricter than National Parks.

[6] http://www.abc.com.py/edicion-impresa/suplementos/escolar/parques-nacionales-y-areas-protegidas-1021665.html


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

 

Posted in Environmental Law

Wild Animals as Pets: legal aspects

“If they have wings, let them fly”

There are several videos on internet about funny and cute talking parrots. We love them, they make us laugh and we even want to have one at home, but stop right there!!! Did you know that having wild animals as a pet is illegal? Unless you have the documents and licenses established by law.

In the homes of many people in the world wild animals species abound, the most frequent and beloved is usually the parrot. It would seem that people still don’t know that having parrots, iguanas, turtles and any other unusual pet at home is illegal. Or they know it, but they still have it, being conscious that they are committing an infraction. Not in vain Mahatma Gandhi said: “Earth provides enough to satisfy every man’s needs, but not every man’s greed.”

Although, there are usually wildlife laws that allow having this type of animals with certain prerequisites, this practice should be eradicated.

The cases in which it is permitted to have a wild animal as a pet, can be for example some species which have been bred in captivity; when it is corroborated that it would be detrimental for them to be released; in cases of domestication or for being with some deficiency. Out of these cases it is not recommended to keep a wild animal as a pet.

It is not easy to have this kind of animals.“They require special care, housing, diet, and maintenance that the average person cannot provide. When in the hands of private individuals the animals suffer due to poor care. They also pose safety and health risks to their possessors and any person coming into contact with them[1]

If you want to have a wild animal as a pet, you must be able to show if asked that you legally own your animal and it’s not captured from the wild. You should keep a record of when and where the animal was found or taken, or a receipt if you bought it. Because wildlife trade without the permission of the authority in charge, is illegal. And people can suffer intervention and also confiscation of the animal.

The Secretariat of the Environment of Paraguay recommends not having wild animals as pets, because they must live in their natural habitat, since only in that way the species can be conserved and protected.[2]  This public body only grants licenses in exceptional cases.

Wild animals have the right to live in freedom, in their natural habitat. By extracting them from nature, illegal wildlife trafficking is being encouraged.

Illegal wildlife trade is the threat that has a direct and irreversible impact on ecosystems and their biodiversity. This is demonstrated by the decline of species with high commercial value. By buying these animals from places or people who do not have the corresponding licenses or permissions, we are encouraging this practice. Because where the demand exists, there is supply.

A research carried out in Mexico by the environmental organizations Defenders of Wildlife and Teyeliz states that most of the wild birds are destined to the national market, due to the custom of many families to have parrots in their houses. Of the 22 species, 11 have been found to be at risk of extinction, and only two of every 10 that are captured, survive.[3]

There are regulations that empower the environmental public institutions to sanction these practices and others that have to do with violations of wildlife. In Paraguay the possession of wild animals as unauthorized pets is classified as a serious offense and the fines can reach to approximately 1349250USD.[4]

In Colombia, sanctions for those who hold copies of wild animals range from large fines to imprisonment for 3 to 7 years, without the possibility of paying bail, as provided by law.[5]

At the international level, in response to this illegal trade in flora and fauna, several countries signed the International Treaty on Trade in Endangered Species of Wild Fauna and Flora (CITES).

A lot of organizations are fighting against this issue as Born Free USA, WWF, ORGFAS Py[6], etc. You can also do something! Do not buy wild animals as pets. Share this information with those around you. Report abuse cases or animals living in deplorable conditions to the appropriate control agencies. And please, let them fly!

Taking care of nature is everyone’s duty…

[1]Get The Facts: The Dangers of Keeping Exotic “Pets”. Link: http://www.bornfreeusa.org/facts.php?p=187&more=1

[2]Official Secretary of Environment web page. Link: http://nwww.seam.gov.py/content/la-secretar%C3%ADa-del-ambiente-recomienda-no-tener-animales-silvestres-como-mascotas

[3] Enciso, Angélica; Méndez, Enrique. Article in Spanishcalled “Loros, en riesgo de extinción”. Link: http://www.jornada.unam.mx/2007/04/19/index.php?section=sociedad&article=049n1soc

[4] Ídem 2

[5] Article in Spanish, called “TRÁFICO DE FAUNA, QUÉ ANIMAL!” Link: http://www.eltiempo.com/archivo/documento/MAM-598286

[6]NGO I’m currently working for. The NGO works for rescue, rehabilitation and reproduction of wild fauna and flora. We are in Paraguay, México and Argentina.


ABOUT THE AUTHOR

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ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university.  She is host of a live TV program about analysis and debate of general interest topics.

 

Posted in Environmental Law

Sue In the name Of Holy River

Story begins with natures ignorance by men and ends with the victims of natural disaster. Story rebegins with a legal identity being given to nature and poses an unending series of questions predicting the consequences thereto…

Legal world of environmental jurisprudence witnessed an interesting leap when nature got a legal personality. In a Public Interest Litigation, Uttrakhand High Court passed an order on 20th March 2017 granting legal personhood to the rivers Yamuna and Ganga along with their tributaries. This followed an another decision passed on 30th march 2017 in another unconnected PIL declaring glaciers, streams, grasslands, springs and waterfalls as legal person.Constant exploitation of rivers and negligent attitude of the government made it inevitable and thus court came out with the widest remedy possible. Though, India is not the first country which showed a legal sensitive attitude towards nature. Ecuador became the first country to recognise ‘rights of nature’ in its constitution. Recently Whanganui River in New Zealand also got legal personhood.

Indian position is very much differentiated from Ecuador and New Zealand. In Eucador, the issue covers nature as a whole and the equation of river with living entities arises nowhere. In New Zealand, the law came in the form of comprehensive legislation, i.e., Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 whereas Indian law is a result of court order. New Zealand enactment is a result of long fought battlebetween Maori (indigenous community) and the Crown, pressing historical claims over river. Maori culture and its beliefs dominate this legislation and provides extensively for the stewardship. Coming back to the Indian context, Uttrakhand High court in its bold and innovative decision exercised  Parens Patrie jurisdiction. It declared Director NAMAMI Gange, the chief secretary of the state of Uttrakhand and the Advocate General of the state of Uttrakhand as loco parentis, i.e., human face to preserve, conserve and protect Rivers Ganga and Yamuna.

This legal dimension is enveloped with various complications. Ganga being a transboundary river flows through various Indian states and has tributaries coming in via Bangladesh and Nepal. Thus questions pertaining to jurisdiction of a state officer rightly crops up in the mind. Justices Alok Singh and Rajiv Sharma granted legal status to Ganga and Yamuna with all corresponding rights, duties and liabilities of a living person. Now an interesting observation arises in reference to river liability in case of flood or other incidental calamity. Unlike temples and trust where Deity as legal person also has liability that can be discharged by respective trusts, present case is totally devoid of any such scheme. Present High Court ruling will certainly throw the ‘massive river linking project’ in the backyard that proposed the large scale diversion of water from eastern India to water scarce regions of western and central India. In case of its execution govt may be welcomed with multiple suits in the name of Holy River.

This revolutionary judgement backed by Articles 48A and 51A(g) of Indian constitution adds one more evidence supporting Indian judiciary commitment towards Directive Principles of State Policy. Hence, 68 years old republic must prepare itself to direct its policy in efficient and proper way to evade frustration of  judiciary as well as of common masses.


ABOUT THE AUTHOR

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DEEPIKA SANGWAN

Deepika Sangwan is a second-year student at Army Institute of Law, Mohali. She is an Editor at college magazine ‘AILITE 2016-2017’. She believes that writing gives clarity & depth to one’s thoughts. Apart from decorating facts with reasoning, cycling is her favourite pass time.